Shajahan v. Mohammed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939 RCRev..No. 67 of 2017 () ------------------------- AGAINST THE JUDGMENT IN RCA 21/2016 of IIIRD RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 13-12-2016 AGAINST THE ORDER IN RCP 67/2013 of MUNSIFF COURT,CHAVAKKAD (RENT CONTROL COURT) DATED 07-04-2015 REVISION PETITIONER(S)/PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------ SHAJAHAN, AGED 43 YEARS,S/O.ARAKKAL VEETTIL ABDULRASAK, VATANAPPILLY VILLAGE,DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S)/RESPONDENT/RESPONDENT/PETITIONER: ----------------------------------------------- MOHAMMED, AGED 65 YEARS,S/O.VALIYAKATH KUNJUMUHAMMED, VATANAPPILY VILLAGE & DESOM,VCHAVAKKAD TALUK, THRISSUR DISTRICT. R1 BY ADV. SRI..JITHIN VARGHESE (CAVEATOR) BY ADV. SRI.K.I.SAGEER THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22-032017, ALONG WITH RCR NO.68/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K. HARILAL & RAJA VIJAYARAGHAVAN V JJ. --------------------------------------------------------R.C.R.Nos.67/2017 & 68/2017 ---------------------------------------------------------Dated this the 22[nd] day of March, 2017** ## **O R D E R** ## **Harilal, J.** These revision petitions are filed challenging the common judgment passed in RCA Nos.21/2016 and 25/2016 on the files of the Rent Control Appellate Authority, Thrissur. Hence, these revision petitions are heard together and disposed of accordingly. 2. Two rent control petitions were filed by the landlord under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') in respect of two shop rooms and these two rooms were occupied by the petitioners **R.C.R.Nos.67/2017 & 68/2017** -: 2 :- herein. Parties are referred to as the landlord and tenant, for convenience and better understanding. 3. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. Counsel appearing for both parties advanced arguments to fortify the rival contentions. 4. According to the landlord, he is running an Auditorium by name 'Shahanas Palace' in the property opposite to the petition scheduled building. The Auditorium and the petition scheduled property are on either side a public road. Since there was insufficiency of parking facility for the Auditorium, the petitioner purchased 19.75 cents of property lying on the opposite side of the said Auditorium and the petition scheduled shop rooms are situated in the said property. Since the said property was purchased for providing parking facility for the Auditorium, he wants to demolish **R.C.R.Nos.67/2017 & 68/2017** -: 3 :- the petition scheduled shop rooms after evicting the tenants from the petition scheduled shop rooms. Hence, they prayed for an order of eviction under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act. 5. The respondents contended that the requirement of providing sufficient parking space to the vehicles of the people who come to the Auditorium is not the need of the owner of the Auditorium and it is the need of the owners of the vehicles only. So also, the need for formation of a parking space, after demolishing the building in occupation of the tenants, cannot be deemed to be a 'bona fide need of the building for his own occupation' contemplated under Sec.11(3) of the Act. According to the learned counsel, the bona fide need must be one for occupation of the existing building only and the demolition of the same brings it out side the ambit of 'own **R.C.R.Nos.67/2017 & 68/2017** -: 4 :- occupation' contemplated under Sec.11(3) of the Act. 6. In view of the rival contentions, the first question to be considered is, whether the requirement of providing sufficient parking space for the vehicles of the people who come to the Auditorium is the need of the owner of the Auditorium. According to the tenants, it is the need of the people who come to the Auditorium and it is not the own need of the owner of the Auditorium. 7. Indisputably, letting out the Auditorium on rent is part of hospitality business and unless sufficient parking space is provided for the vehicles, the business would suffer. We find merit in the submission of the learned counsel that though the actual beneficiaries are the owners of the vehicles, the need to provide adequate space to alleviate the inconvenience is that of the owner of **R.C.R.Nos.67/2017 & 68/2017** -: 5 :- the Auditorium. 8. The next question to be considered is, whether the need of providing parking space, after demolition of the building in occupation of the tenants, would fall under the expression 'building for his own occupation' contemplated under Sec.11(3) of the Act. According to the tenants, any use of the space, after demolition of the building in occupation of the tenants, is not envisaged under Sec.11(3) of the Act. They contended that the usage of the building, as such, after eviction of the tenants, is contemplated under the said expression. 9. In earlier decisions, this Court has interpreted the expressions “building” and “own occupation” contemplated under the Buildings (Lease and Rent Control) Act. In _**P. Muhamed Kanhu v. H. A. Asnarkunju [1965 (1) KLR 323**_ ] this Court held that if the petitioner bona fide ## **R.C.R.Nos.67/2017 & 68/2017** -: 6 :- needed the building for his own occupation and the finding of the Rent Control Court is that he so needed it, the petitioner was entitled to recover possession of the building notwithstanding the fact that he has to demolish the present building and reconstruct it for the purpose of such occupation. The fact that the building requires reconstruction for the purpose of occupation does not mean that the petitioner does not require it for own occupation. In other words, the purpose of occupation may be such that the building may have to be demolished and reconstructed; that does not mean that the landlord's claim is not under Sec.11(3) of the Act. 10. Subsequently, this Court followed the above decision in _**Sarada v. M.K. Kumaran**_ _**[1969 KLT 133]**_ and held that bona fide need for own occupation under Sec.11(3) of the Act would take in if the need is to provide a passage through **R.C.R.Nos.67/2017 & 68/2017** -: 7 :- the site on which the original structure stood after its demolition. The word “occupation” does not necessarily refer to 'occupation as residence'. An owner can occupy a place by making use of it in any manner. The definition of the term 'building' under the Act is not precise and exhaustive definition of the term is also not possible. The meaning of the 'building' in ordinary language comprises not only the fabric of the building; but the land upon which it stands. 11. This Court relied on the aforesaid decision in _**Krishna Menon v. District Judge [1988(1) KLT 131].**_ In that case the landlord wanted demolition of the building occupied by the tenant for the purpose of providing parking area to a multi-storied building constructed in the rear portion of the building in question. In that case also the tenants contended that the need contemplated under Sec.11(3) of the Act will not **R.C.R.Nos.67/2017 & 68/2017** -: 8 :- encompass any other need for which the building is to be used and it does not envisage the demolition of the building and using the space occupied by the building. This Court declined to accept the above decision and followed the decisions referred above. 12. Lastly, in _**Daniel and others v. M.G. George [1993 KHC 248],**_ this Court in a similar situation involved in _**Krishna Menon v. District Judge [1988 (1) KLT 131]**_ followed all the earlier decisions referred above and reiterated the wide interpretation given to the word 'building' and 'own occupation' contemplated under Sec.11(3) of the Act. 13. The principles that can be culled out from the aforesaid decision is that the word 'building' in ordinary language comprises not only the fabric of building; but the land upon which it stands also. Further, 'own occupation of the building' **R.C.R.Nos.67/2017 & 68/2017** -: 9 :- contemplated under Sec.11(3) of the Act encompasses occupation of the space occupied by the building and after demolition of the building in occupation of the tenant also. 14. So, we hold that the need of providing sufficient parking space to the Auditorium for parking the vehicles of the people who come to the Auditorium, after demolition of the building in occupation of the tenants, would fall under the expression 'need of the building for his own occupation' contemplated under Sec.11(3) of the Act. 15. In the above analysis, we find that there is no illegality or impropriety in the concurrent findings of the courts below in holding the above view. 16. Coming to the findings under the twin proviso to Sec.11(3) of the Act, the courts below concurrently held that the tenants failed to **R.C.R.Nos.67/2017 & 68/2017** -: 10 :- discharge the onus of proof. We do not find any reason to interfere with the findings under the said proviso, in the absence of any tenable arguments assailing the legality or impropriety of the said findings where the tenants failed to discharge the building of proof. Hence the courts below are justified in denying the protection under Sec.11(3) of the Act to the tenants. These Rent Control Revisions are devoid of merits and dismissed accordingly. 17. At last, the learned counsel for the petitioners sought for some time to vacate the petition scheduled shop rooms. Learned counsel for the respondents submits that reasonable time can be given to vacate the premises. Accordingly, six months time is granted to the respondents to vacate the petition scheduled shop rooms. The Revision Petitioners/tenants shall vacate the plaint schedule shop room in each Revision Petitions ## **R.C.R.Nos.67/2017 & 68/2017** -: 11 :- within a period of six months from today on the following conditions within the specified time. i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the petition schedule shop room within a period of six months from today and the said affidavit must be filed within two months from the date of receipt of a copy of this order. ii) The revision petitioner shall pay entire arrears of rent to the respondents or deposit the same before the Execution Court within two months from the date of receipt of the copy of this order and he shall continue to pay rent without default. iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the **R.C.R.Nos.67/2017 & 68/2017** -: 12 :- respondents will be at liberty to proceed with the execution. **(K. HARILAL, JUDGE)** **(RAJA VIJAYARAGHAVAN V, JUDGE)** al/-